Volume I • Issue II

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February 2017

The Court Report

A new presidential administration may well have a big impact to the future of compliance to the Telephone Consumer Protections Act.

The Trump team has announced that Ajit Pai will Chair the Federal Communications Commission, replacing outgoing head Tom Wheeler.  Under Wheeler’s control, the FCC mandated many new and controversial rules concerning telemarketing regulations.

Most notable was the July 2015 Declaratory Ruling and Order in which the already-cloudy definition of “auto-dialer” was rendered even more baffling and the new “one-call rule” was injected, having an immediate, detrimental impact on customer service and support for businesses across the United States.

There followed a flood of litigations in federal and state courts, with 2016 seeing TCPA class-action filings surpass privacy lawsuits for the first time in history.

Pai has expressed a more pro-business attitude in interpreting the TCPA, while also respecting the intent of Congress with regard to privacy and fair-practice to the consumer. His dissenting remarks to the July 2015 show a measured approach to compliance, litigation, and commerce.

NAVIGATING THE ROAD

OF CONSUMER CONSENT

By Dan Rieke, C.E.C.P.
As a compliance professional who delivers support and data to marketing operations, I get asked repeatedly about what type of consent is needed for various types of outreach to customers.

I have seen as many opinions on this as there are laws, states, and companies, from those completely naïve on the subject to those supposedly “expert” in the matter.

Many opinions on compliance are dry, legal tomes that have no real-world practicality with regard to a sales professional’s question of “what should I do?”

Many others are just plain wrong.

Indeed, just in the past month I have had to correct two major companies that specialize in compliance services on their own compliance practices.

One example concerned calling cell phones in Texas, and the question of whether the consumer’s supplying a phone number at the time of sale was sufficient consent.

Another example concerned written contracts in Pennsylvania, and a premature ruling by a state agency attempting to nullify most sales agreements in an entire industry.

Yet another recent example involved the transfer of what is commonly known as “internal do-not-call lists,” which is highly restricted.

Finally, in the past few weeks, I’ve had to wrangle with a major national online advertiser regarding their compliance record keeping.

They felt sure their system was compliant, and their attorney concurred, but it would not pass a simple compliance checklist of five mandatory points.

The real-world reason for all these questions stems for the fact that there are over 100 federal and state laws concerning different types of consumer contact, and the consent required for each.

These requirements concern sales, debt collection, surveys, and non-profits. Consent for one type of contact can differ substantially from the consent required for another, even to the same party.

When you combine that regulatory scenario with myriad marketing channels and engagement paths, the minutia and variables can be overwhelming!

It’s nearly impossible for a marketing team to stay on top of all these laws and requirements, to say nothing of maintaining the appropriate records. Internal legal departments are often immersed in a variety of matters, and simply not focused on marketing and consent as a specialty.

You have statutory requirements on one side of the commerce coin, and real-world policies and procedures that achieve compliance on the other.

A simple rule in law concerning consent can involve pages of procedures to adhere to that rule! And it has to all stay current with changes in laws, court decisions, agency rulings, industry practices, advancing technology…on top of changing internal staff and resources!

No wonder there are so many questions!

It is not enough to “know” rules about compliance. Nor is it enough to hire an “outside company” to "do" your compliance for you.

A successful and enduring executive strategy today must establish a pan-operational culture of compliance know-how, practice, and fail-safing to weather and mitigate a storm of litigation and punitive action.

Only a company expert in not only compliance, but in marketing, management and operational programs can help you bring this about with rapid efficiency.

That is why we are called All Global Resources. We are renowned in our expertise at real-world safe harbor.